Craigslist Terms of Use Continue to Overreach

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In July, Craigslist sued 3Taps, a company that took Craigslist listings and made them accessible to third-party developers to make useful add-ons (like Padmapper, a site that plotted apartment listings on maps). Craigslist threw a bevy of complaints at these companies, including that they infringed Craigslist's copyrights in the listings—an odd claim, since most of those bare-bones listings aren't copyrightable in the first place, and because any copyrights would belong to the authors of the posts, and not Craigslist. Now 3Taps has filed a countersuit, alleging that Craigslist is violating antitrust laws. This fresh batch of press got me to take a look at Craigslist's terms of use again, and I found something odd—Craigslist appears to be trying to leverage its terms of use into potential copyright lawsuits.

Here's how: Towards the bottom of section 5 ("UNAUTHORIZED ACCESS AND ACTIVITIES"), this language appears:

If you access craigslist or copy, display, distribute, perform or create derivative works from craigslist webpages or other CL intellectual property in violation of the TOU or for purposes inconsistent with the TOU, your access, copying, display, distribution, performance or derivative work is unauthorized. Circumvention of any technological restriction or security measure on craigslist or any provision of the TOU that restricts content, conduct, accounts or access is expressly prohibited. For purposes of this paragraph, you agree that cached copies of craigslist webpages on your computer or computer server constitute "copies" under the Copyright Act, 17 U.S.C. § 101. For purposes of this paragraph, you further agree that CAPTCHAs and telephone verification are "technological measures" that effectively control access to copyright-protected components and rights of CL pursuant to 17 U.S.C. § 1201.

The part that I've bolded there basically seems to be saying that, by using Craigslist, you're agreeing that merely looking at the pages (which necessarily means that copies of the pages are made in your computer's RAM, and often means that copies are stored on your hard drive) is subjecting you to a lawsuit for copyright infringement, unless you obey all of the terms in that lengthy agreement.

This is exactly the kind of thing that created potential problems in the MDY v. Blizzard case—where a company tries to turn what should be a contract dispute into a copyright one. The difference being that contract disputes offer a lot less by way of payout for plaintiffs, while the odds are frequently stacked in favor of a well-funded plaintiff in digital copyright cases. (For more explanation of this, take a look at this post from the early days of the Blizzard case) In that case, Blizzard sued MDY for making a bot that played World of Warcraft. Sure, using a bot was a violation of the game's terms of use, but Blizzard wasn't just suing for a breach of that contract—it claimed that, because of various provisions in the fine print of its license agreement, any of those breaches became copyright infringements. The appeals court disagreed, saying that the copyright licenses didn't explicitly depend upon the users obeying all of the terms of the agreement, including the anti-bot provisions.

Craigslist's terms of use here appear to be trying to get around that sort of decision, explicitly spelling out that, unlike pretty much every other website out there, you don't have their permission to look at ("access") its website on your computer unless you agree to its rules.

So as much as it might deserve some belated credit for dropping its shockingly terrible "exclusive license" language from an earlier version of its terms of use, Craigslist seems to continue creeping down the path of ever-more-restrictive terms, claiming an increasing amount of control and legal muscle against anyone who doesn't play by the rules it wants to set.

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